Citation Nr: 0629892
Decision Date: 09/21/06 Archive Date: 10/04/06
DOCKET NO. 04-33 546 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
coronary artery disease, status post myocardial infarction
(coronary artery disease).
2. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his son
ATTORNEY FOR THE BOARD
W. Preston, Associate Counsel
INTRODUCTION
The appellant served on active duty for training from March
8, to August 31, 1958.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a May 2004 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania.
Entitlement to service connection for coronary artery disease
was denied in a February 1998 Board decision. In a
separately issued decision, the Board held that the February
1998 Board decision was not clear and unmistakable error
(CUE). Hence, the February 1998 Board decision is final. 38
U.S.C.A. § 7104, 7111 (West 2002). Thus, regardless of any
RO action, the current claim to reopen may be considered on
the merits only if new and material evidence has been
submitted since the February 1998 Board decision. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2005).
For the reasons outlined below, this appeal is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC. Consistent with the instructions below, VA
will notify you of the further action that is required on
your part.
FINDING OF FACT
The evidence added to the record since the February 1998
Board decision is not duplicative or cumulative of evidence
previously of record, and it raises a reasonable possibility
of substantiating the claim of entitlement to service
connection for coronary artery disease.
CONCLUSION OF LAW
New and material evidence has been received to reopen the
appellant's claim of entitlement to service connection for
coronary artery disease. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156.
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant contends that coronary artery disease was
brought about or, in the alternative, aggravated by his
military service. As noted above, this claim was the subject
of a February 1998 Board denial. The Board found at the time
that rheumatic heart disease accounted for his separation
from service and that he presently had coronary artery
disease. His claim, however, was denied because there was no
competent medical evidence causally linking service and his
current coronary artery disease.
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108. Evidence is considered
"new" if it was not previously submitted to agency decision
makers. "Material" evidence is evidence which, by itself
or when considered with previous evidence of record, relates
to an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a).
In determining whether the evidence is new and material, the
credibility of the newly presented evidence is to be
presumed. See Justus v. Principi, 3 Vet. App. 510 (1992).
The Board is required to give consideration to all of the
evidence received since the last disallowance of the matter
on any basis, in this case, since the Board's February 1998
decision. See Hickson v. West, 12 Vet. App. 247, 251 (1999).
Using these guidelines, the Board has reviewed the additional
evidence associated with the claims folder since the final
denial. In this regard, the evidence includes, for the first
time, medical opinion evidence that causally relates the
appellant's coronary artery disease to his military service.
Specifically, in a September 2003 letter, Richard A. Tiberio,
M.D., opined that he was "certain that the stress of [the
appellant's] service aggravated his blood pressure and
contributed to the development of his coronary artery
disease."
As service connection may be granted for any disease or
injury incurred or aggravated while performing active
military service, 38 U.S.C.A. § 1131, and as active military
service includes any period of active duty for training
during which the individual concerned was disabled from a
disease or injury incurred or aggravated in the line of duty,
38 U.S.C.A. § 101(24) (West 2002), it follows that the
opinion of Dr. Tiberio is so significant that it must be
considered to fairly address the merits of the claim. Hence,
the additional evidence is new and material, 38 C.F.R. §
3.156(a), and the claim of entitlement to service connection
for coronary artery disease is reopened. 38 U.S.C.A. § 5108.
Regarding the application of 38 U.S.C.A. §§ 5102, 5103(a),
and 5103A (West 2002), to the extent indicated, the decision
is completely favorable to the appellant. Therefore, a
discussion of VA's statutory duty to assist the appellant and
the effect it had as to whether his claim should be reopened
is not required.
ORDER
The claim of entitlement to service connection for coronary
artery disease is reopened.
REMAND
As to entitlement to service connection for coronary artery
disease, while the appellant has submitted new and material
evidence to reopen the claim, given the state of the law and
evidence as discussed below, the Board finds the underlying
claim must be remanded for further evidentiary development
before the merits may be addressed.
First, as to entitlement to service connection for
hypertension, the February 2004 VA examination, while
diagnosing hypertension, refrained from addressing the topic
of a nexus or lack thereof between that current disorder and
military service. This was followed soon thereafter by a May
2004 rating decision denying service connection for
hypertension. Therefore, on remand, the appellant's file is
to be reviewed to obtain medical opinion evidence as to the
relationship, if any, between hypertension and military
service. 38 U.S.C.A. 5103A(d).
The appellant's March 2004 statement to the RO informed VA
that he had been treated for the conditions at issue by
Highlands Hospital, Frick Hospital, Westmorland Hospital, St.
Francis Hospital, and Mercy Hospital, as well as by Dr.
Tiberio, Daniel M. O'Roark, D.O., and Dr. Kenneth Newill.
The exact dates of treatment are unclear. While records from
some of the aforementioned treatment providers were secured
and associated with the claims file, the RO neither requested
nor obtained records from Frick Hospital, Westmorland
Hospital, or Dr. O'Roark. Therefore, a remand to attempt to
obtain these latter records is required. 38 C.F.R. 5103A(b).
In April 2004, the RO wrote to the appellant that it would
not request records for which the claimant provided
authorization because, in its opinion, they "do not appear
relevant." On remand, however, the RO is to seek records
from each provider for whom the claimant has given necessary
authorization in connection with the claimed disabilities.
Id.
The record is negative for diagnoses of coronary artery
disease or hypertension for over thirty years following
service. Therefore, the Board invites the appellant to file
with the RO any records that might include this diagnosis if
they are available, to include the aforementioned treatment
records.
Moreover, 38 U.S.C.A. § 5103A(d) requires VA to provide a
medical examination or obtain a medical opinion, when such an
examination or opinion is necessary to make a decision on the
claim. In this case, a review of the clinical evidence by a
physician is in order.
Finally, on remand, the RO should send the appellant a
corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) (2005), that includes an explanation as to the
information or evidence needed to establish a disability
rating and effective date for the claims on appeal, as
outlined by the United States Court of Appeals for Veterans
Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473
(2006).
Accordingly, the case is REMANDED for the following actions:
1. The RO should supply the appellant
with corrective notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish a disability rating and
effective date for the claims on appeal,
as outlined by the Court in Dingess.
2. The RO should inform the appellant and
his representative that the current record
is devoid of medical evidence showing
complaints, diagnoses or treatment for a
heart disorder or hypertension for over
thirty years following service. The RO
should both invite the claimant and his
representative to identify the location of
any relevant medical records during this
time period and provide VA with the
necessary authorizations to associate this
information with the record.
3. After securing new authorizations for
each previously named treatment provider,
the RO should request all of the
appellant's treatment records from Frick
Hospital, Westmorland Hospital, and Dr.
O'Roark. If any of the pertinent records
are not available, or if the search for
the records yields negative results, that
fact should clearly be documented in the
claims file, and the appellant notified in
writing.
4. After undertaking the above
development and adding any records
received to the claims folder, the claims
folder is to be referred to the examiner
who conducted the February 2004
examination. Following a review of all of
the evidence, to include any evidence
received since February 2004, the examiner
is to opine whether it is at least as
likely as not (i.e., is there a 50/50
chance) that either coronary artery
disease, status post myocardial
infarction, and/or hypertension was
incurred or aggravated during the
appellant's term of active duty for
training between March and August 1958.
If another examination is required, an
examination is authorized. If the
examiner who conducted the February 2004
examination is not available, a new
examination is required. That new
examination must address the question
outlined above. In any event, a complete
rationale must be provided for each
opinion offered.
5. The RO should review the VA
examination report to ensure that it is in
complete compliance with the directives of
this REMAND. If it is deficient in any
manner, the RO must implement corrective
procedures at once.
6. The RO should then readjudicate the
issue on appeal. If any benefit sought on
appeal is not granted the RO must issue a
supplemental statement of the case (SSOC),
which should address all evidence received
in the claims file since the August 2004
statement of the case, and provide the
appellant an opportunity to respond. The
RO is advised that it is to make a
determination based on the law and
regulations in effect at the time of its
decision, to include any further changes
in VA's statutory duty to assist the
appellant and any other applicable legal
precedent.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).
Department of Veterans Affairs